State Ex Rel. Nelson v. Jordan

STRUCKMEYER, Justice, and UDALL, Vice Chief Justice

(dissenting).

This action in quo warranto can and should be resolved by the simple and usual principles customarily applied to constitutional interpretations. Because it has not been so resolved we are compelled to dissent.

The two proposed constitutional amendments passed by affirmative vote at the general election of November S, 1968, relate to Art. V, § 1 of the Constitution of Arizona. In their relevant parts, they are:

“Proposition # 104
“Section 1. The Executive Department shall consist of Governor, Secretary of State, State Auditor, State Treasurer, Attorney General, and Superintendent of Public Instruction, each of whom shall hold his office for four years beginning on the first Monday of January, 1971 next after the regular general election in 1970.”

and Proposition # 108:

“Section 1. The Executive Department shall consist of Governor, Secretary of State, State Treasurer, Attorney General, and Superintendent of Public Instruction, each of whom shall hold his office for two years beginning on the first Monday of January next after his election.”

The majority of this court conclude from a comparison of the two propositions that they conflict. This is because Proposition # 104 includes the State Auditor as an office of the Executive Department and Proposition # 108 excludes that office. However, this seeming conflict disappears when the two propositions are compared with Art. V, § 1 as it was prior to November 5, 1968, and the relevant law is applied in the light of the language used.

Since statehood in 1912, and until the general election of November 5, 1968, the Constitution of the State of Arizona Art. V, § 1, paragraph 1 has provided:

“Section 1. The Executive Department shall consist of Governor, Secretary of State, State Auditor, State Treasurer, Attorney General, and Superintendent of Public Instruction, each of whom shall hold his office for two years beginning *102on the first Monday of January next after his election.”

' It will be immediately noticed that while Art. V, § 1 consists of one sentence, structurally it has two distinct clauses, hence it is divisible into two severable parts. The first clause, by the language “The Executive Department shall consist of the Governor, Secretary of State, State Auditor, State Treasurer, Attorney General, and Superintendent of Public Instruction,” established the enumerated offices as constitutional offices. The second clause, by the language, “each of whom shall hold his office for two years beginning on the first Monday of January next after his election,” established their terms of office.

Proposition # 104 purports to change the existing Art. V, § 1 only in its second clause; that is, that the terms of the offices shall be for four years after the first Monday of January, 1971, instead of two years as was formerly. Proposition # 108 purports to change Art. V, § 1 only as to the first clause in that it deletes the office of State Auditor as a constitutional office, thereby abolishing that office. It is abundantly clear that the purpose in submitting the two proposed amendments in this manner was to permit the people to decide each proposal separately vis-a-vis whether the terms of the executive department would be increased to four years and whether the office of the State Auditor would be abolished.

The propositions as submitted to the electorate conform to the holding of this court in Kerby v. Luhrs, 44 Ariz. 208 at p. 221, 36 P.2d 549:

“ * * * if any one of the propositions, * * * is not such that the voter supporting it would reasonably be expected to support the principle of the others, then there are in reality two or more amendments to be submitted, * $ *»

The legislature, in submitting two propositions, avoided what is commonly known as .“logrolling.” Either the first or the second clauses of Art. V, § 1 could be changed or both or no change at all could be made but if the amendments were incorporated into one, the voters would have had no choice but to either accept or reject both of the proposed changes. The legislative objective is laudable and commendable. It should not be permitted to thwart the majority wishes of the voters in the democratic state of Arizona, rather every effort should be made to find the purposes of the amendments and apply them as written.

It is, of course, the prime aim of constitutional construction to arrive at the apparent purpose of an enactment. We said, for example, in construing another article of the Arizona Constitution:

“ * * * there are two of the canons of constitutional construction which seem peculiarly applicable. The first and most important one is that the construction should be such as to accomplish the apparent purpose of the provision. * * * ” Porter v. Hall, 34 Ariz. 308, 321, 271 P. 411, 415.

The purpose should be determined from a reasonable and fair interpretation of the language used. See e. g. In re Morris’ Estate, 56 Cal.App.2d 715, 133 P.2d 452; Wolfson v. Avery, 6 Ill.2d 78, 126 N.E.2d 701; Lincoln v. Secretary of Commonwealth, 326 Mass. 313, 93 N.E.2d 744; In re Fay, 291 N.Y. 198, 52 N.E.2d 97.

This is everywhere the approved mode of constitutional construction and bears repeating. The court seeks to determine the purpose of the constitutional enactment and in arriving at the purpose looks to the language used.

A close scrutiny of the language used in the propositions and a comparison with the language of Art. V, § 1 as it existed before amendment makes the purposes of the two propositions clear and obvious. Bach was designed to permit the electorate to accept or reject one change only. It is wholly unreasonable to assume from a superficial examination of the two propositions, as the majority do, that the pur*103pose of one was to cancel the other if both passed by affirmative votes; that is to say, that the two-year term in Proposition 108 was to cancel the four-year term in Proposition 104.

The majority treat but lightly the principle that constitutional provisions only are in conflict when they relate to the same subject, are adopted for the same purposes, and cannot be enforced without creating conflicts.

“Distinct provisions of the constitution are repugnant to each other only when they relate to the same subject, are adopted for the same purposes, and can not be enforced without material and substantial conflict.” Meyers v. Flournoy, 209 La. 812, 25 So.2d 601, 603.

When the two proposed amendments are read in the light of the divisible and sever-able nature of the two clauses found in Article V, Section 1, it is plain that they do not relate to the same subject. The subject of Proposition 104 relates to the second clause of Article V, Section 1— that part providing for the terms of office. The subject of Proposition 108 relates to the first clause—that part enumerating the offices.

Neither do they have the same purposes. Purpose means the effect or result aimed at. Webster’s Third New International Dictionary Unabridged. The result aimed at by each of the proposed amendments is distinct and dissimilar. Each seeks to change the Constitution in a single different respect. Moreover, each can be enforced without creating a conflict simply by giving to each the meaning attributable to the purposes found in the language used.

It is also an accepted principle that one part of a Constitution is not to be allowed to effect another, if by any reasonable construction the two can be made to stand together. McBride v. Kerby, 32 Ariz. 515, 521, 260 P. 435. An interpretation which is reasonable and consistent with common sense should be applied and “A construction which will result in an absurdity should be avoided.” McBride v. Kerby, supra. Under the majority’s interpretation, Proposition 108 is wholly ineffective and nugatory and the will of the majority of those voting is defeated, whereas by the construction which we believe proper, a reasonable and sensible interpretation is accorded which gives effect to both amendments.

For the foregoing reasons we dissent.